Archive for July, 2017

The process of divorce is common across all ages. It’s about the division of assets and income as well as support for small children, when they are part of the picture. With Gray Divorce, there are a few different twists to the mix that focus on time together, division and support during retirement and the facts of health as we age.

But for those that have been together for so long, what brought the marriage to a point that divorce is the option?

Average life expectancy today is about 79. The 2010 census showed more than 40 million people over the age of 65. At this point in life there can be many internal questions that drive us to seek change. Just like the younger divorcing couples the gray divorce experiences infidelity, family violence, substance abuse, financial pressures, a sense of lost direction or simply the wish for independence.

But as we age, the sense of interdependence plays a large roll in these choices. One example is when health issues present themselves and life gets tougher. At a time when people thought they would be free to enjoy life, heartache sets in.

The afflicted spouse may selflessly want the other person to move on. They do not want to be a burden. The caregiver may be fatigued emotionally and mentally. As caregivers, it is often too stressful for one person to deal with the decline in health of a spouse.

Dominic A. Carone, PhD, noted that in the case of Alzheimer’s, couples struggle with the desire for relationship. Dr. Carone, notes that it is common for the caregiver to begin seeing other people after the spouse has developed Alzheimer’s. The typical question is if the caregiver should be allowed to see other people, because the spouse that they knew is now “gone.”

This is a struggle that reaches far beyond the longing for a change in life. The years of companionship are lost. That is coupled with a caregiver’s sense of personal vitality and a personal thought that there is still much more to life.

This idea is too often quantified and qualified by research and statistics. It really deserves a different look… a more personal inside look.

For an interesting twist on the same Alzheimer’s dilemma, Deidre Bair gives a glimpse into the situation. In her book, Calling It Quits, she comments about Jan, a middle-aged woman, with parents in their eighties. To quote Jan, “Growing up in Margaret and Harry’s house had been like living on a battleground, as they argued, shouted, and threw things on an almost daily basis.”

Later Jan learned that both her parents needed supervision due to Alzheimer’s. She had to take on the custodial duties of both. Even though they had been divorced for over 20 years, Jan feared what was about to happen. But, according to Jan, when they moved in she said, “They have become best friends because they can’t remember they were ever married to each other. They would spend their days happily sharing tales of their miserable marriages and how they wished they had met when they were younger.”

What a tale of circumstances. That is not to say every story goes this way. They do not. The more common situation is a spouse watching the other as life’s memories fade from view and there is only the shell of what was once a companion.

While health creates a real struggle and dilemma, it is not the average course of events. Most people live longer together which is often cited in research as a reason for the gray divorce. That idea raises the question of how people handle the gray divorce when they feel all else is lost? Can it be avoided?

John Gottman notes that as people grow older, there is a tendency to forget how to connect. Proximity to a partner does not equal knowing and engaging with that person. Today technology creates barriers to intimate communication. People would rather dive into the electronic world versus being in the real world.

As we age, there are some powerful actions that can help couples recover from and avoid late life separation. These were summarized by Terry Gaspard, MSW, LICSW as he wrote about successful second marriages. In fact, as people age, their relationship changes and the marriage evolves. It is like a second and third marriage as couples morph over time.

Build a culture of appreciation, respect, and tolerance: The idea is to catch your partner doing something right and acknowledging it.

Practice being vulnerable in small steps: Build confidence in being more open with your partner. Discussing minor issues like schedules and meals is a great place to start before tackling bigger matters.

Create time and a relaxed atmosphere to interact with your partner: Ask for what you need in an assertive, non-aggressive way and be willing to see each other’s side of the story. In The Seven Principles for Making Marriage Work, Dr. Gottman encourages us to respond to our partner’s “bids” for attention, affection, and support. This can be something minor like “please make the salad” or as significant as accompanying our partner on a trip to visit an ill parent.

Discuss expectations to avoid misunderstandings: Take a risk and deal with hurt feelings, especially if it’s an important issue, rather than stonewalling and shutting down.

Prepare for conflict: Understand that conflict doesn’t mean the end of your marriage. Dr. John Gottman’s research on thousands of couples discovered that conflict is inevitable in all relationships and 69% of problems in a marriage go unresolved. Despite this, conflict can be managed successfully and the marriage can thrive! Take a short break if you feel overwhelmed or flooded as a way to restore positive communication with your partner.

Communicate effectively: Accept responsibility for your role in a disagreement. Listen to your partner’s requests and ask for clarification on issues that are unclear. Use “I” statements rather than “you” statements that tend to come across as blameful, such as “I felt hurt when you purchased the car without discussing it with me.”

Embrace your role as a step parent / step grandparent: In a changing relationship the role of each spouse will change whether the children are yours or from another relationship. This role may be one of an adult friend, mentor, and supporter rather than a disciplinarian. Learn new strategies and share your ideas with your partner. There’s no such thing as instant love. When a spouse feels unappreciated or disrespected by children, they will have difficulty bonding with them. This causes stress for the family and the marriage.

Attune to your partner: Eye contact and body posture demonstrate your intention to listen and compromise. Practicing what Dr. John Gottman calls emotional attunement while relaxing together can help you stay connected despite your differences. This means “turning toward” one another and showing empathy rather than “turning away.” His 40 years of research showed that happy couples have a 5:1 ratio of interactions during conflict – meaning for every negative interaction, you need five positive ones.

Establish an open-ended dialogue: Don’t make threats or issue ultimatums. Avoid saying things you’ll regret later. Money is one of the most common things couples argue about and full disclosure about finances is key to the success of the marriage so resentment doesn’t build up.

Practice forgiveness: Accept that we all have flaws. Forgiveness isn’t the same as condoning the hurt done to you, but it will allow you to move on and remember you are on the same team.

A good way to make life work is to build a “couple culture” of awareness and appreciation. Using the tools of being open to a partner leads to friendship and intimacy. Using Dr. Gottman’s thoughts about respect, acceptance, positive communication, and having a good sense of humor can help make the mature marriage last a lifetime.

The basis for support in California state law is found in Family Code Section 9 which is Support. As of this writing, it encompasses Code sections 3500-5700.905 and it changes whenever the state legislature deems it necessary.

California Code Section 4320 covers the elements a court can take into consideration when ordering support. In our view, every couple, family mediator and collaborative group team should put these on the table for consideration. Even though it may be a non-litigated settlement. Each couple should be working under an informed concept of support.

Section 4336 of the family code notes that “Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.” This simply is intended to allow the court to carry jurisdiction, influence or authority over support, including petitions for changes to support whether it is spousal or child support.

This sets the “table” for support on the state level. However, the IRS has their own set of rules about support and the deductibility of such payments from one person to a former spouse. This is located in the U.S. Tax Code under Section 71 – Alimony and separate maintenance payments.

The rules look complex, but are relatively straight forward. We have put in bold the sections that make up the core of these rules:

(a) General rule: Gross income includes amounts received as alimony or separate maintenance payments.

(b) Alimony or separate maintenance payments defined: For purposes of this section—

(1) In general: The term “alimony or separate maintenance payment” means any payment in cash if—

(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,

(B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215,

(C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

(D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.

(2) Divorce or separation instrument: The term “divorce or separation instrument” means—

(A) a decree of divorce or separate maintenance or a written instrument incident to such a decree,

(B) a written separation agreement, or

(C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.

In summary, the alimony requirements are that:

The spouses don’t file a joint return with each other;

The payment is in cash (including checks or money orders) and not an exchange or property or services;

The payment is to or for a spouse or a former spouse made under a divorce or separation instrument;

While oddly worded, the divorce or separation instrument does not designate the payment as not being alimony;

The spouses aren’t members of the same household when the payment is made (This requirement applies only if the spouses are legally separated under a decree of divorce or of separate maintenance.);

There’s no liability to make the payment (in cash or property) after the death of the recipient spouse; and

The payment isn’t treated as child support or a property settlement.

The wording of the divorce agreement needs to be clear on these matters of the payments may not be deductible to the person making the payment.